13 Pacific Association of Quantity Surveyors Congress

th

MEDIATION: THE BEST PRIVATE DISPUTE RESOLUTION IN THE MALAYSIAN CONSTRUCTION INDUSTRY?
Zulhabri Ismail 1, Jamalunlaili Abdullah2, Rosli Mohamad Zin3, and Padzil Fadzil Hassan4
1 2

Faculty of Architecture, Planning and Surveying , Universiti Teknologi MARA Faculty of Architecture, Planning and Surveying , Universiti Teknologi MARA 3 Faculty of Civil Engineering , Universiti Teknologi Malaysia 4 Faculty of Architecture, Planning and Surveying , Universiti Teknologi MARA zulhabri@salam.uitm.edu.my ABSTRACT Private dispute resolution (PDR) refers to settlement of disputes other than litigation which is not open to the public. This includes mediation, adjudication and arbitration. Of the three PDRs, arbitration and mediation are promoted in the Malaysian construction industry. Notwithstanding the continuing reliance on litigation as the approach to solve construction disputes, arbitration was slowly accepted by the industry. As arbitration is more applied, it was realized that arbitration can be adversarial, and that a more friendly approach to solve disputes need to be considered. Consequently, mediation was introduced and promoted. However to date, its application has been poor. This paper presents the research which investigates what is going on. It was developed on the premise that the poor response in adopting mediation as a form of PDR could be because mediation was poorly conceived and applied. A combined quantitative research method using the survey and qualitative research method using semi-structured interviews were adopted for the research. The variables which can impact on the application of mediation were also investigated. The findings suggest that, while mediation is generally considered appropriate there were concerns on the adequacy of its provisions and practice. Views on how this can be overcome were identified. The conclusions suggest the need for the industry to re-learn its approach in the promotion and the application of mediation if it is to be more effective. Keywords: Private dispute resolution, mediation, mixed methods and construction industry.

1.

INTRODUCTION

Dispute is inevitable in construction projects and it can be regarded as endemic in the construction industry. Disputes predominantly arise due to the complexity and magnitude of activities within construction works, multiple contracting parties, poorly prepared and executed contract documents, inadequacy of planning, financial issues and communication problems. Any of the stated factors can stall a project and lead to disputes and adversarial relationship between the construction participants. Disputes can either be avoided from the outset by way of efficient risk allocation and management or resolved once it is occurred. The former seems to be more efficient to avoid unnecessary time and cost. However, the latter may be practical for complex issues which require third parties interference (Edwards & Shaoul, 2003). Dispute resolution can be divided into two main categories which are public and private. Public dispute resolution refers to the nature of litigation which focuses on the fair implications of private interactions but open to the public (Stitt, 2004; Forster & Jivan, 2008). Generally, there is no guarantee of privacy in litigations due to the publication of judgments in law journals. Comparatively, private dispute resolution refers to private mechanism which parties autonomy will play bigger roles in dispute resolution and confidentiality characteristic of the overall process. There are three method of private dispute resolution available in major standard form of construction contracts in Malaysia namely arbitration, which is the ultimate dispute resolution for construction disputes,

32

13 Pacific Association of Quantity Surveyors Congress

th

mediation which has been around for more than ten years and the latest is adjudication which has been introduced in the Persatuan Akitek Malaysia (PAM) latest 2006 form. This paper discusses on the application of mediation in the Malaysian construction industry in comparison to arbitration and how to further utilise and improve the stated method of private dispute resolution. 2. THE THEORITICAL FRAMEWORK

Disputes and Private Dispute Resolution Traditionally, resolving construction disputes are done through litigation (Leong, 2005; Harrington, 2007). This can be confirmed by 72 cases related to building contract being reported by the Malayan Law Journal between 1997 and 2007 (Asniah, 2007) and the Current Law Journal which reported about 200 cases of construction related issues since 2004. Yet, today the litigation procedures have fallen into disrepute, particularly due to excessive costs, delays, procedural complexity and adversarial approach (Harmon, 2003; Jones, 2006). The problematic issues in litigation are not new but have been apparent since the last decade and causing distortions in the business community worldwide (James, 2003). In the Malaysia context, it has been reported that as of July 2006 there are more than 300,000 civil cases including construction pending in the Malaysian courts (NST, 18 June 2007). Furthermore, in May 2008, the Minister in the Prime Ministers Department stated that there are more than 900,000 unresolved cases in the lower courts and more than 91,000 at the High Court. He suggested that alternative methods of private dispute resolution may be the answer to the mounting backlog of civil cases nationwide (NST, 09 May 2008). As opposed to public dispute resolution, out of court or alternative methods of private dispute resolution are seen as the options to ensure efficient settlement of construction disputes (Thaveeporn, 2008). Given that these shortfalls will result in delays, complexity and expense to the litigation process, there is a strong need for assisted settlement or other alternative methods of private dispute resolution apart from arbitration and mediation to be employed in the construction industry. Due to the distinctive nature of the construction industry, the possibilities of generating disputes are high due to scientific or technical difficulty (Rajoo, 2008; Luen, 2006a; El-adaway, 2008). Thus, the application of dispute resolution in both public and private projects seems to be unavoidable. Looking into the problematic issues in litigation as the public dispute resolution, there is a tendency by the construction industry to apply alternative methods of private dispute resolution (Leong, 2005). However, the application of arbitration in the Malaysian construction industry seems to be uncontested and pragmatically some believed that arbitration is the most suitable and well-known dispute resolution technique for settling Malaysian construction disputes (Rajoo, 2004). The main reason is the nature of the dispute resolution which is final and binding and its track record in the construction industry (Chan & Suen, 2005). Since the establishment of Arbitration Act 1952 and the latest 2005 Act, this mode of private dispute resolution is not new to the industry (Luen, 2006b). Even so, one cannot deny that previous researches confirmed that there is a negative reputation surrounding the practice of arbitration in Malaysia (Che Munaaim & Loh, 2007; Abdul Aziz & Kamal Halili, 2008). Thus, serious efforts are required to make private dispute resolution more effective and efficient. Arbitration and Mediation in the Malaysian Construction Industry Compared to the UK construction industry, arbitration started to its lose popularity due to the development of cheaper and non-adversarial dispute resolutions such as adjudication and mediation (Reid & Ellis, 2007; Brooker, 2007) and the development of a dispute board in big scale construction projects (Chapman, 2004; Ndekugri & Russell, 2006). However, other than mediation, other private dispute resolutions are not well publicized and utilized in the Malaysian construction industry. In comparison to arbitration, other methods of private dispute resolution such as mediation and adjudication are relatively new to the Malaysian construction industry. Mediation has been introduced by PAM in its 1998 standard form and adjudication has been formed as part of its 2006 form. Similarly, CIDB in its 2000 edition form introduced mediation as one of the options for private dispute resolution.

33

13 Pacific Association of Quantity Surveyors Congress

th

After more than ten years in the industry, mediation is not progressing at the same pace with arbitration; it is evidenced by the number of cases registered with various agencies. Between the year 2000 and 2008, numbers of mediation cases are very low compared to arbitration and no adjudication cases were reported (Table 1). Table 1: Arbitration and Mediation Cases Registered With Various Agencies Between 2000 and 2008 Item 1 2 Source Cases

Malaysian Mediation Centre under the Total 155 Mediation cases but only four auspices of the Malaysian Bar Council. construction mediation cases. Malaysian Institute of Architect (PAM). Total 518 construction arbitration cases including one case in 2008 and no mediation case so far.

3 4

Kuala Lumpur Regional Centre for Total 126 cases including 27 construction Arbitration (KLRCA). cases. Construction Industry Board (CIDB). Development No reported case but CIDB is involved with at least five cases acting as a mediator for both government and private disputed projects. Total 15 construction arbitration cases until 2007, no registered case in 2008 and no mediation cases.

Institution of Engineer Malaysia (IEM).

In developed countries, mediation is very popular and recognised by the courts (Naughton, 2003; Brooker, 2007). Cases such as Dunnett v Railtrack1where the court stated that Skilled mediators are now able to achieve results satisfactory to both partieswhich are quite beyond the power of lawyers and courts to achieve, and in the case of Hurst v Leeming2where the court described that mediation is at the heart of todays civil justice system. Naughton (2003) clarified that in the UK, those cases opened the floodgates and now the mediation is expressly recognized in the Commercial Court Guide, Chancery Guide, the Queens Bench Guide and the Technology and Construction Court Guide. However, the similar scenario is not happening in Malaysia. The Chairman of the Mediation Committee of the Bar Council once expressed that mediation has yet to be widely adopted by the business community in Malaysia and she further confirmed that greater acceptance of this alternative mechanism would also help clear the backlog of commercial cases waiting to be heard in court (Bernama August 31, 2005). It has been suggested that the final and binding issues are the main problems in mediation and it would be more popular if mediation is placed on a statutory footing (Seng, 2006). Chapman (2004) clarified that in the United Kingdom, it has been reported that only a small percentage of cases go to arbitration and the remaining large percentage is settled by way of non-adversarial dispute resolution. A research was conducted by the Centre of Construction Law and Dispute Resolution, Kings College London confirmed that majority of mediation cases was undertaken on the parties own initiative; those advising the parties to construction disputes routinely consider mediation to try and bring about a resolution of the dispute; and the cost savings attributed to successful mediations were also significant,
1 2

Dunnett v Railtrack [2002] All ER 850. Hurst v Leeming [2002] EWHC 1051 (Ch).

34

13 Pacific Association of Quantity Surveyors Congress

th

providing a real incentive for parties to consider mediation (Gould, et al., 2009). Thus, the concept of non-adversarial should be maintained as the best mechanism for dispute settlement. There are limited research and no comprehensive empirical data on the application of private dispute resolution in the Malaysian construction industry and how to ensure efficient settlement and improve private dispute resolution in the construction industry (El-adaway, 2008; Elmarsafi, 2008; Thaveeporn, 2008; Chen, 2003; Hammad, 2001; Asniah, 2007; Chan & Suen, 2005; Abdul Aziz & Kamal Halili, 2008). As a result the industry continues to struggle to identify ways to resolve disputes equitably and economically. Some suggested that computer based mechanism be developed based on the historical data on construction disputes due to difficulty in finding dispute resolution practitioners (Cheng, Tsai, & Chiu, 2009). Similarly, Brooker (2009) lucidly disclosed that there is still a shortage of empirical data which identifies the suitability and effectiveness of mediation for construction disputes. One of the reasons for such development is the areas of legal practice in the built environment, including construction law and dispute resolution has received little sustained scholarly attention (Chynoweth, 2009). 3. THE RESEARCH

The Research Methodology Mixed methods consist of quantitative research (cross sectional survey) and qualitative (in-depth semi structured interviews) was adopted for the research. Two research questions drawn for the investigations were: What are the construction variables which influence the application of arbitration and mediation? To what level is arbitration and mediation applied? What are the factors that influence the application of arbitration and mediation and why? The respondents were G73 Building and Civil Engineering contractors in Malaysia registered with the Construction Industry Development Board (CIDB). (G7 refers to the largest class of contractors allowed to undertake projects in excess of RM10 million). One thousand questionnaires were sent out and the response rate was 23.1% (231 responded). Data were analyzed using non-parametric statistics using the SPSS Version 14 software. Of the 231 respondents, 30 with experience in arbitration and 20 in mediation were identified but only 30 of these were willing to be interviewed (18 with experience arbitration and 12 mediation). The qualitative analysis was carried out using the ATLAS.ti 5.0 software. Table 2: Sampling Frame
State Potential Respondents N 144 125 100 716 37 53 72 116 Percent 5% 4% 4% 25% 1% 2% 3% 4% Respondents (stratified sampling) N Percent 51 5% 44 4% 35 4% 254 25% 13 1% 19 2% 25 3% 41 4% Actual Respondents N 7 2 0 62 1 3 3 6 Percent 3% 1% 0% 27% 0% 1% 1% 3%

1 2 3 4 5 6 7 8

Johor Kedah Kelantan Kuala Lumpur Melaka Negeri Sembilan Pahang Pulau Pinang

3 Under Construction Industry Development Board (CIDB) contractors registration criteria, G7 contractors are those who have no limitation in tendering capacity, paid up capital worth RM 750,000 and minimum personnel / resources requirement: one Group A (Degree holder in construction related fields) and one Group B (Diploma holder in construction related fields or other degree holder with experience in construction works) both with minimum five years experience or two Group A (one of whom must have 5 years experience) (Source: CIDB, The Construction Industry Directory 2004-2005).

35

13 Pacific Association of Quantity Surveyors Congress 9 Perak 10 Perlis 11 Sabah 12 Sarawak 13 Selangor 14 Terengganu 15 No answer Total 75 18 207 179 883 109 2834 3% 1% 7% 6% 31% 4% 100% 26 6 73 63 312 38 1000 3% 1% 7% 6% 31% 4% 100% 4 0 5 5 127 4 2 231 2% 0% 2% 2% 55% 2% 1% 100.0%

th

Quantitative Research Findings Descriptive statistics using the Bivariate analysis using Chi-Square (CS) Tests i.e., the test for independence and correlation analysis (measure of association) using Cramers V (CV) together with Contingency coefficient (CC) test for nominal data and Spearmans Rank (SR) order test for ordinal data were applied. Out of the total of 231 responses, 10% of the construction organisations reported having applied mediation (Figure 1) and a significant percentage of respondents reported having applied mediation between one or two times throughout their years of establishment. A small percentage reported having applied mediation between three to five times (Figure 2). An almost similar trend was observed for the number of years of experience for individual respondent (Figure 3). There were no significant relationship between the applications of mediation and years of establishment, contract price and project duration (Chi Square p > = 0.05) (Table 4).

7.Cf/o 6.Cf/o S.Cf/o 4.Cf/o 3.Cf/o 2.Cf/o 1.Cf/o O.Cf/o

Uedi~tioll

ArbitrMioll

l-Syears

6-10 years

11-lSyears

16-20years

Over21 years

Figure 1: Years of Establishment and Application of Private Dispute Resolution

0,,, 21 3'",0

~
2.Cf/o 4.Cf/o 6.Cf/o 8.Cf/o 10.Cf/o

11-20 years 10 years and below

O.Cf/o

10 years and below -OverS

.3 5
_1_2

11 20 years

Over21 years 06% 06% 97%

36% 1.8% 36%

1.8% 42%
6.Cf/o

36

13 Pacific Association of Quantity Surveyors Congress

th

Figure 2: Years of Establishment and Quantity of Mediation

Over21 years 16-20 years 11-15years 6-10years 1-5 years 00% 20% 40% 60% 80%

~ ~

1 5 years

6 10 years

11-15years 00% 06% 42%

16-20 years 06% 18% 42%

Over21 years 36% 12% 6.1%

_Over5 _3_5
_1_2

06% 00% 12%

12% 24% 30%

Figure 3: Years of Experience and Quantity of Mediation

Table 3: Application of mediation (measure of association) Variables Years of Establishment Contract Price Project Duration Satisfactory Application Unsatisfactory Application Recommended Application Respondents Designation CS 0.84 0.47 0.31 0.00 0.00 0.00 0.04 CV CC SR

1 2 3 4 5 6 7

0.77 0.71 0.69

0.74 0.71 0.70

-0.14

The application of mediation was observed to be considerably high for higher contract value and the highest frequency of application is still between one or two cases and the application of mediation was observed to be low for considerably low valued contract. In terms of project duration, respondents with project duration less than three years were observed to be more active in the applying mediation. Qualitative research findings Results from semi-structured interviews indicate that the appropriateness of mediation depends on the commitment and consistency of disputed parties to resolve the issue and to accelerate the process. The relationship between the disputing parties will be the deciding factor to determine whether adversarial or non-adversarial dispute resolution will be appropriate. For instance, if there is tendency of the parties to maintain the current level of relationship mediation may be appropriate. Otherwise, arbitration might appropriate. However, in term of the disputed amount both the quantitative and qualitative analyses indicate no strong relationship with the methods of dispute resolution. It was conceived that, the perception that arbitration is just for disputes which related to large amounts of money and mediation for small amounts might not be accurate. Most respondents believe that the choice to mediate was right compared to arbitration in most circumstances. Those knowledgeable in law and have won arbitration cases are more in favor of

37

13 Pacific Association of Quantity Surveyors Congress

th

arbitration and thinks that arbitration was appropriate. In contrast, those who have experienced unsuccessful mediation may not think it is appropriate. Notwithstanding, this depends on the how the PDR was administered and they were able to control and gain confidence of the disputing disputed parties. As for problems faced by the respondents (Figure 4), two quarters of respondents have experienced mediation without major problems. However, almost a similar portion reports that they have had problems of co-operation by the other party. Comparatively, timing issues were the most problematic in arbitration, together with cost related issues such as amount at stake and fees of the arbitrator. This is consistent with the main reasons for low preference over the dispute resolution.

Legal bearing InappropJiate arbitra tor/mediMor Rigid and inflexible Incomp etel.lt arbitrat or/mediator Uulti party arbitration/medi ation No co-operation by theother palty EddeilCes and witnesses No problelll at all Timing Representatin JlII'isdictioli Fees oithe arbitrator/mediator

8', S',

Uediation
Arbitration

L~-_

Cost reiatedisSllesJamOUllt at stake

, IS-_

Figure 4: Problems in Arbitration and Mediation Process Time and cost were the main reasons why the respondents felt arbitration was inappropriate compared to mediation. Cases with low quantum disputed and simple issue may not appropriate for arbitration, instead mediation might be the best option. However, not all arbitration cases are expensive and time consuming as many cases were resolved in less than three years. Knowledge in the dispute resolution together and commitment to resolve disputes is crucial to ensure appropriateness of any PDR resolution since there is a tendency to misuse and abuse the process. The adversarial nature of arbitration appears to be more inappropriate for the Malaysian construction industry. In terms of its process, an impartial arbitrator is expected to dispose the issue by looking into both expressed and implied terms of the contract. Prefessionalism tends to be more demanded in arbitration compared to mediation. Comparatively, a win-win situation is expected in mediation and mediator is regarded as a middle man to facilitate the process. However, non-binding mechanism of mediation emerge as one of the the most inappropariate compared to final and binding arbitrators award. To avoid risk of inappropriate selection of dispute resolution methods, it is suggested to apply mediation, arbitration and court in stages since there are pros and cons for each of the method. The findings converge to suggest that PDRs tends to be more successful in settling construction disputes. Mediation tends to be a better proposition to settle the dispute when terms time and cost is the critical element. The factors which contribute to effective PDRs culminated from this research are: 1. Appointment of practitioner such as arbitrator or mediator should be based on the nature of dispute, highly experience and well verse in construction contracts and law and the appointment should be made at the initial stage such as during pre-contract.

38

13 Pacific Association of Quantity Surveyors Congress

th

2. 3.

4. 5.

Pre-dispute resolution preparation, such as to ensure sufficient documentations, determination of appropriate mode either adversarial (arbitration) or non-adversarial (mediation) by looking into the background and attitude of the parties and disputed amount at stake. During dispute resolution process, a reasonable amount of documentation and presentation, spirit of the parties to resolve dispute fast, abide with contractual time, presentation of case by way of chronological events, appointment of experts to assist the process and participation of working level staff is crucial to ensure successful process of dispute resolution. Prior to actual settlement, the parties may predict the outcome and withdraw from the process to avoid further losses. The parties need to be flexible in the sense of accepting the final decision and fulfill obligations apportioned in the settlement.

Recommendations to improve mediation in the construction industry were drawn from the interviews are: 1. An establishment of a framework for efficient dispute resolution to include mediation as one of the main dispute resolution prior to adversarial dispute resolution. 2. Amendment of the standard form of contract by adding mediation as one of the options for private dispute resolution. 3. Upgrade the current practice and procedure of mediation in order to ensure successful outcome and to provide means to settle construction disputes promptly. 4. Active promotion and education by both professional and academic institutions. 5. Impartial and non-profit organization to administer and oversee mediation. 6. Establishment of the Malaysia Construction Industry Courts to dispose issues relating to construction disputes and court-annexed mediation should be encouraged and regulated. 7. Induction course on construction disputes and settlement using mediation to be conducted for Project Managers. 8. Final and binding and enforceable mechanism need to be part of mediation settlement. 4. CONCLUSION

Dispute is common in the construction industry due to complexity and magnitude of works. As a result, the application of dispute resolution is unavoidable. As to the nature of non-adversarial in mediation, most of the construction participants regarded that it is appropriate for the industry. However, this research indicated that very small percentage applied mediation and there is no strong relationship between the applications of mediation in term of number and years of establishment; contract price; project duration; resolved cases and years of experience. Appropriateness of mediation is largely depending on the disputing parties commitment and consistency to accelerate the process. The relationship of the disputed parties is the deciding factor to apply mediation. By and large, mediation is cheaper than adversarial private dispute resolution such as arbitration and most respondents believed that the choice to mediate was right compared to arbitrate. To ensure successful process of mediation, careful appointment of mediators; sufficient documents to backup the claims; spirit to resolve and flexibility are crucial. In order to improve and utilise mediation in the construction industry, efforts from the government agencies, professional bodies, industry bodies and academic institution are required and further action is needed to further upgrade and make good any potential problems that will or has been arise in all stages of mediation process.

39

13 Pacific Association of Quantity Surveyors Congress

th

REFERENCES Abdul Aziz, H., & Kamal Halili, H. (2008). Satu Survei Kesedaran Proses Timbang Tara Dalam Projek Pembinaan Kerajaan. In A. Y. Sakina Shaik, C. N. Anisah, Z. Zinatul Ashikin, Y. Noor Inayah, & M. A. Hasani, Undang-Undang Dalam Era Teknologi (pp. 420-448). Kuala Lumpur: Fakulti Undang-Undang Universiti Kebangsaan Malaysia. Asniah, B. (2007). The Profile of Construction Disputes. Johor Bahru: University of Technology Malaysia. Brooker, P. (2007). An Investigation of Evaluative and Facilitative Approaches to Construction Mediation. Emerald , 25 (3/4), 220-238. Chan, E. H., & Suen, H. C. (2005). Dispute Resolution Management for International Construction Projects in China. Emerald , 589-602. Chapman, P. (2004). Dispute Board. King's College London. Che Munaaim, M., & Loh, P. (2007). Stepping outsie the Traditional Roles: The Quantity Surveyor and Adjudicator. Quantity Surveying International Convention (pp. 281-290). Kuala Lumpur: Construction Industry Development Board. Cheng, M.-Y., Tsai, H.-C., & Chiu, Y.-H. (2009). Fuzzy Case-Based Reasoning for Coping With Construction Disputes. An International Journal Expert Systems with Applications , 4106-4113. Chynoweth, P. (2009). Legal Scholarship: A Discipline in Transition. International Journal of Law in the Built Environment , 1 (1). Edwards, P., & Shaoul, J. (2003). Partnerships: For Better, For Worse? Accounting, Auditing and Accountability Journal , 16 (3), 397-421. El-adaway, I. H. (2008). Construction Dispute Mitigation Through Multi-Agent Based Simulation and Risk Management Modeling. Iowa State University. Forster, C. M., & Jivan, V. (2008). Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience. Asian Journal of Comparative Law , 3 (1), Article 6. Gould, N., King, C., Hudson-Tyreman, A., Betancourt, J. C., Ceron, P., Lugar, C., et al. (2009). The Use of Mediation in Construction Disputes. Kings College London and The Technology and Construction Court, The Centre of Construction Law and Dispute Resolution. London: Society of Construction Law . Harmon, K. (2003). Dispute Review Boards and Contribution Conflicts: Attitutes and Opinions of Construction Industry Members. Nova Southeastern University. Harrington, A. (2007, November 7). Building on mediation as a foundation. The Scotsman: Scottish Legal Review Edition , 12. James, D. S. (2003). Major Construction Projects and Dispute Resolution: Does Adjudication Have a Role to Play? International Construction Law Review , 483-504. Jones, D. (2006). Construction Project Dispute Resolution: Options for Effective Dispute Avoidance and Management. Joutnal of Professional Issues inEngineering Education and Practice , 3 (132), 225235. Leong, C. Y. (2005, November 16). Mediating Construction Disputes. Kuala Lumpur, Malaysia. Luen, L. K. (2006b). Arbitration in Construction Contracts. Mediation, Adjudication, Litigation and Arbitration in Construction Contracts. Kuala Lumpur: Current Law Journal. Luen, L. K. (2006a). Litigation in Construction Contracts. Mediation, Adjudication, Litigation and Arbitration in Construction Contracts. Kuala Lumpur: MySeminar Sdn Bhd. Naughton, P. (2003). Mediators are Magicians - A Modern Myth? London: Society of Construction Law. Ndekugri, I., & Russell, V. (2006). Disputing the Existence of a Dispute as a Strategy for Avoiding Construction Adjudication. Engineering, Construction and Architectural Management, 13 (4), 380395. Rajoo, S. (2004). Law, Practice and Procedure of Arbitration. Kuala Lumpur: Malayan Law Journal. Rajoo, S. (2008). Master Builders. Arbitration in the Construction Industry , pp. 72-76. Reid, A., & Ellis, R. C. (2007). Common Sense Applied to the Definition of A Dispute. Emerald, 25 (3/4), 239-252.

40

13 Pacific Association of Quantity Surveyors Congress

th

Seng, L. S. (2006). Mediation in Construction Contracts. Mediation, Adjudication, Litigation and Arbitration in Construction Contracts. Kuala Lumpur: Current Law Journal. Stitt, A. J. (2004). Mediation: A Practical Guide. London: Cavendish Publishing. Thaveeporn, P. (2008). Universal Prediction Model for Construction Litigation. Illinois Institute of Technology.

41